2005509 (Migration)
[2024] AATA 759
•29 February 2024
2005509 (Migration) [2024] AATA 759 (29 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Karyn Anderson
CASE NUMBER: 2005509
COUNTRY OF REFERENCE: Pakistan
MEMBER:Tegen Downes
DATE:29 February 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·309.228 of Schedule 2 to the Regulations; and
the second named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·PIC 4007(2)(b) for the purposes of cl 309.228 of Schedule 2 to the Regulations.
Statement made on 29 February 2024 at 10:11am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – health criteria – mild functional and cognitive impairment – mild developmental delay – Medical Officer of the Commonwealth (MOC) opinion – significant cost to the Australian community – Commonwealth disability services – special education services – waiver of requirement – Australian citizen child residing in Australia – sponsor unable to return to Pakistan – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 309.228; Schedule 4, PIC 4007CASES
Bui v MIMA (1999) 85 FCR 134
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Singh v Minister for Home Affairs [2020] FCAFC 7Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 12 February 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 June 2013. The delegate refused to grant the visas as the applicants did not satisfy cl 309.228 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the secondary applicant did not meet the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations.
The review applicant was represented in relation to the review. The representative filed comprehensive written submissions dated 15 December 2023, which were of great assistance to the Tribunal.
I did not invite the review applicant to appear before the Tribunal in accordance with s 360 of the Act because I considered that I should decide the matter in the review applicant’s favour having regard to the material before me.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE AND LAW
Clause 309.228 of Schedule 2 to the Regulations relevantly requires that each member of the family unit of the applicant, who is an applicant, satisfies PIC 4007. The determinative issue in this review application is whether the secondary applicant meets PIC 4007.
PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, undergo a medical assessment, and be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.
Relevantly, cl 4007(1)(c) requires the applicant be free from a disease or condition in relation to which:
a.the applicant would be likely to require either health care or community services, or meet the medical criteria for provision of a community service during the specified period; and
b.the provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to either: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.
In determining whether a person meets PIC 4007(1)(c), reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC), unless certain exceptions apply. Where an opinion of a MOC is required, the Tribunal must take it to be correct: reg 2.25A(3). The current threshold for ‘a significant cost’ is $51,000 and the specified period is 10 years.
The requirement in PIC 4007(1)(c) may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).
The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (Bui) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’, there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47.
The department’s procedural instruction for PIC 4005-4007 (VM-1027 dated 10 November 2023) (which is informative but not binding on the Tribunal) provides that each health waiver case must be considered on its merits, with all relevant factors taken into account, including the capacity to mitigate the potential costs or prejudice to access identified, and the strength of any compelling and/or compassionate circumstances. It also provides that criteria that may be considered to be compassionate and compelling include that:
·an Australian citizen sponsor has been diagnosed with a health condition and would be unable to access appropriate treatment if forced to relocate;
·there is no permanent migration pathway to the applicant’s home country (or another country that the couple have the legal right to reside in) available to the sponsor (for example, because same-sex migration to that country is not available);
·the sponsor would be seriously adversely affected financially, such that they would be unable to subsist (maintain or support themselves at a minimal level) in the applicant’s home country due to a lack of language skills, family support and/or employment opportunities;
·the sponsor holds/held a Protection or Refugee/Humanitarian visa and a decision not to waive would separate them from their spouse/children as they are unable to return to the country from which they fled and there is no third country option;
·there is evidence of an adverse impact on Australian citizen or permanent resident minor children if a decision not to waive is made (for instance, the sponsor has provided evidence that they are prevented by the other parent from removing minor children from Australia) or not exercising the waiver would cause or lead to the continued long-term or permanent separation of Australian citizen or permanent resident minor children from their parents, where either the child or the child’s parent or parents are in Australia;
·the sponsor has significant family links to Australia, and has demonstrated caring or financial obligations towards them;
·Australia would miss out on a significant benefit that the applicant/sponsor could contribute to Australia’s business, economic, cultural or other development (for example, a specialised skill/business that is highly sought after in Australia) or are providing a valuable community service (for instance through their employment and/or volunteering activities);
·the sponsor/family is already settled in a remote, rural or regional area, and it is assessed that a decision to waive would bring economic or social benefit to that area;
·the sponsor/applicant and/or other working family members in a non-Skilled visa application have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List);
·the applicant and/or other working family members have occupational skills that are found on the National Skills Commission’s latest Skills Priority List (found at not on the MLTSSL or the National Skills Commission’s Skills Priority List, the applicant/sponsor has a unique skillset that is vital to their employer’s business, and/or there is evidence that the employer would suffer detriment if a health waiver was not exercised; or
·there are any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members.
Further, the procedural instruction provides that when considering applications by a biological child of the sponsor, consideration and weighting should be given (where applicable) to:
·the best interests of the child, which should be treated as a primary consideration where the decision affects a minor child or children in Australia. Section 65 delegates should also consider whether or not exercising the health waiver would cause or lead to the continued long-term or permanent separation of minor children from their parents, where either the child or the child’s parent or parents are in Australia;
·whether or not the child was declared and/or included in any previous applications for a permanent visa;
·the circumstances that led to the child not being included in the parent/s successful migration application (for instance if the child was a non-migrating family member (in the custody of another person), whose condition was not disclosed to the department and/or who did not complete health examinations for that application, why is the child now migrating;
·circumstances where a child was declared to be non-migrating, however, a Child visa application was lodged shortly after the parent’s permanent visa was granted; or
·whether the family has the legal right, and could easily enter and reside in another country with no particular hardship (for example, the sponsor has only recently been granted a permanent Australian visa/citizenship, and still holds citizenship for another country, or the family have been residing in another country for a significant period and are eligible to remain there).”
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The primary applicant is a [age]-year-old woman from Pakistan. She claims to be in a partner relationship with the sponsor. The secondary applicant is the couple’s child, aged [age] years. The couple also have another child, aged [age] years. Currently, the applicants reside in Pakistan. The sponsor and the other child reside in Australia and, at the time of decision, are both Australian citizens.
The sponsor arrived in Australia in 2011 and was granted a protection visa in 2012 on the basis that he believed he would be at risk of serious harm in Pakistan. Despite this, the sponsor has returned to Pakistan to spend time with his wife.
The delegate found that the secondary applicant failed to satisfy PIC 4007 based on a MOC opinion dated 30 July 2019, which provided that the secondary applicant has mild functional and cognitive impairment and requires intervention to maximize her potential outcome and that a hypothetical person with the same condition of at the same severity would be likely to require health care and/or community services, the provision of which would be likely to result in a significant cost to the Australian community. The estimated costs were as follows:
State disability services
$12,000
Special education services
$165,000
Total Cost
$177,000
The applicant submitted information to the department in response to the MOC opinion. However, the delegate found that the health requirement should not be waived because the delegate was not satisfied that the potential costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances.
Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?
On the evidence before the Tribunal, a MOC opinion is required. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735.
A second MOC opinion was provided on 9 November 2023. The MOC opinion was that the applicant does not satisfy PIC 4007(1)(c)(ii)(A). Relevantly, the MOC opinion states:
At the time of visa application, the applicant was a 5 year old person. During the health assessment, this applicant has been assessed with:
- Mild developmental delay
Form and severity of the applicant's condition: the applicant has mild developmental delay of unknown aetiology, as evidenced by delay in aged-expected milestones particularly for language and communication skills and intellectual impairment. The applicant requires early intervention services to develop communication and social skills, and ongoing learning support in school. For the purpose of a RMOC and in line with PIC 4007(1A)(a), the applicant was assessed as a zero year-old person to reflect their age at the time of the visa application. Noted the applicant's date of birth [date] and the date of visa application dated 29 June 2013 as per letter from the Administrative Appeals Tribunal dated 6 Nov 2023. Provision of services to a hypothetical person in Australia with the same condition as the applicant and at the same severity: a hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term disability support services including but not limited to: special education and commonwealth disability support services. This condition is likely to be Permanent.
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include:
Commonwealth disability services
Special education services
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
Estimated total cost
Breakdown as follows:
$170,360.00
Commonwealth disability services - $6,300.00 x 6.0 Years
Age 1-6; early intervention services; mild developmental delay; costed as per amended (weighted) mean NDIS budgets based on Participation Data costing via the NDIS dated June 2023.$37,800.00
Commonwealth disability services - $5,100.00 x 2.0 Years
Age 7-8; early intervention services; mild developmental delay; costed as per amended (weighted) mean NDIS budgets based on Participation Data costing via the NDIS dated June 2023. Noted NDIS has extended early intervention services up to age 8 inclusive from 1 July 2023.$10,200.00
Special education services - $30,590.00 x 4.0 Years Age 7- 10 inclusive, state-funded special education funding level 3; Cost estimate based on Disability Services Notes for Guidance May 2023, including but not limited to scenario 2.
$122,360.00
I am satisfied that the MOC opinion is valid because it identifies the medical condition to which the public interest criterion has been applied, the form or level of the condition suffered by the applicant, and the statutory criteria has been applied by reference to a hypothetical person who suffers from that form or level of the condition. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC4007(1)(c).
Should the requirements of PIC4007(1)(c) be waived?
I have carefully considered the claims made by the review applicant, the representative’s submissions and the supporting evidence provided. On balance, I am satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicants satisfying all other requirements for the visa.
In making my decision, I have not accepted many of the submissions made by the representative. However, given that my decision is ultimately in favour of the applicant, I have not responded to each of the submissions and claims in my decision. Ultimately, my reasons for finding in the applicant’s favour are twofold.
The paramount reason is that the primary applicant and the sponsor have a child (not the secondary applicant) who is an Australian citizen and who resides in Australia. While I do not accept the submission that I am ‘bound to consider Australia’s commitment’ to the United Nations Convention on the Rights of the Child for the reasons set out in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 and Singh v Minister for Home Affairs [2020] FCAFC 7, I still consider it appropriate, and consistent with the procedural instruction, to consider and prioritise this child’s interests. I accept the evidence and submissions that it is in this child’s best interests for her family to be reunited in Australia.
Second, I accept that a decision not to waive would separate the applicants from the sponsor as the sponsor is unable to return to Pakistan and there is no third country option. While the sponsor concedes that he has returned to Pakistan, I accept based on the evidence before me that this is not a safe long-term option for the sponsor.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·309.228 of Schedule 2 to the Regulations; and
the second named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·PIC 4007(2)(b) for the purposes of cl 309.228 of Schedule 2 to the Regulations.
Tegen Downes
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4007(1) The applicant:
(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:
(i)must undertake any medical assessment specified in the instrument; and
(ii)must be assessed by the person specified in the instrument;
unless a Medical Officer of the Commonwealth decides otherwise; and
(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and
(a) is free from tuberculosis; and
(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c) subject to subclause (2) — is free from a disease or condition in relation to which:
(i)a person who has it would be likely to:
(A)require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period described in subclause (1A); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; and
(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.
(1A)For subparagraph (1)(c)(i), the period is:
(a) for an application for a permanent visa — the period commencing when the application is made; or
(b) for an application for a temporary visa:
(i)the period for which the Minister intends to grant the visa; or
(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.
(1B)If:
(a) the applicant applies for a temporary visa; and
(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);
the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.
(2)The Minister may waive the requirements of paragraph (1)(c) if.
(a) the applicant satisfies all other criteria for the grant of the visa applied for; and
(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:
(i)undue cost to the Australian community; or
(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
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